Allowed

Satish Yadav v. State Of Chhattisgarh

Chhattisgarh HC10 Mar 2024CRA/969/2017

Case brief

AI extract

What is this about?

In this criminal appeal challenging a conviction for murder and cruelty to wife based solely on a dying declaration, the High Court held that the conviction could not stand without evidence that the deceased was in a fit state of mind at the time the statement was recorded, leading to the acquittal of the appellant on grounds of benefit of doubt.

What did the court decide?

The conviction and sentences for offences under Sections 302 and 498-A of IPC were set aside; the appellant was acquitted and directed to be released from jail.

Satish Yadav Vs State Of Chhattisgarh — Dowry and Cruelty | Chhattisgarh HC (2024)

¶1

Page 1 of 16 IN Criminal Appeal No.969 of 2017

¶2

NAFR

¶3

HIGH COURT OF CHHATTISGARH, BILASPUR

¶4

CRA No. 969 of 20 17

¶5

[Arising out of judgment dated 08.02.2017, passed in Sessions Trial No.107 of 2016 (State of Chhattisgarh v. Satish Yadav), by the 9^th Additional Sessions Judge, Bilaspur (C.G.)]

¶6

Satish Yadav, Son of Late Shri Badri Prasad Yadav, aged about 35 years, Resident of Kasturba Nagar, Sindhi Colony, Jarhabhata, Police Station Civil Line, Bilaspur, District Bilaspur (Chhattisgarh).

¶7

---- Appellant (In Jail)

¶8

Versus

¶9

State of Chhattisgarh, through Incharge, Police Station Civil Lines, District Bilaspur (Chhattisgarh)

¶10

---- Respondent

¶11

For Appellant For Respondent

¶12

: Mrs. Usha Chandrakar, Advocate : Mr. HAPS Bhatiya, Panel Lawyer

¶13

Division Bench

¶14

Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Sanjay Kumar Jaiswal

¶15

Judgment on Board (11.03.2024)

¶16

Sanjay K. Agrawal, J

¶17

(1) In this criminal appeal filed under Section 374(2) of Cr.P.C., the accused-appellant herein is calling in question the legality, validity and correctness of the impugned judgment of conviction and order of sentence dated 08.02.2017, passed by 9^th Additional Sessions Judge, Bilaspur, in Sessions Trial No.107 of 2016,

¶18

whereby he has been convicted and sentenced as under:

¶19

Conviction		Sentence
U/s. 302 of IPC	Imprisonment	for life	with fine of
	Rs.1,000/- and,	in default	of payment of
	fine, additional	rigorous	imprisonment

¶20

Page 2 of 16 IN Criminal Appeal No.969 of 2017

¶21

for 06 months. U/s. 498-A of IPC Rigorous imprisonment for 02 years with fine of Rs.500/- and, in default of payment of fine, additional rigorous imprisonment for 02 months.

¶22

[All the sentences are directed to run concurrently]

¶23

(2) The case of the prosecution, in a nut-shell, is that immediately after the marriage, the accused-appellant herein used to commit cruelty and marpeet with his wife, namely, Smt. Dileshwari Yadav (hereinafter referred to as the “deceased”) and further used to suspect her character and, on account of which, on 16.04.2016 at about 10:00 AM, on the same pretext, the appellant herein with the intent to kill his wife (deceased), poured kerosene oil on her body and set her ablaze by lighting matchstick, due to which, she suffered deep burn injuries to the extent of 80-85% and died later on during the course of her treatment in hospital on 19.04.2016 and, thereby, the appellant is said to have committed offences under Sections 498-A & 302 of IPC.

¶24

(3) It is further case of the prosecution that immediately after the incident, on the same day i.e. on 16.04.2016 at about 12:05 PM, the deceased was escorted/admitted to Chhattisgarh Institute of Medical Sciences (CIMS), Bilaspur, wherein she was medically examined by Dr. Dharmender Kumar (PW-06) and, as per her Medical Case Sheet (Ex.P/09) and MLC report (Ex.P/10), it has been opined that the deceased suffered burn injuries to the extent

¶25

Page 3 of 16 IN Criminal Appeal No.969 of 2017

¶26

of 80-85%. Further, on 17.04.2016, between 12:15 PM to 12:45 PM, the dying declaration of the deceased was recorded by the Naib Tehsildar, namely, Narendra Kumar Banjara (PW-03) vide Ex.P/06, wherein she implicated her husband (appellant herein) to be the author of the crime in question by stating that: as her husband (appellant) used to suspect her character and commit marpeet with her, on the date and time of the offence, the appellant under the influence of liquor came to the house and on same pretext again commit marpeet with her and, further, with the intent to kill her, poured kerosene oil on her body and set her ablaze by lighting matchstick, due to which, she suffered deep burn injuries.

¶27

(4) Thereafter, on 19.04.2016, the deceased succumbed to the injuries and died during the course of her treatment at CIMS, Bilaspur, pursuant to which, information with regard to sudden and unnatural death of the deceased was sent by the hospital to the police, upon which, merg intimation (Ex.P/13) and FIR (Ex.P/ 14) was registered against the appellant and, wheels of investigation started running, in which, summons under Section 175 of CrPC were sent vide Ex.P/01. Inquest proceedings were conducted vide Ex.P/02). Nazari Naksha was also prepared vide Ex.P/04. The dead-body of the deceased was sent for postmortem examination, which was conducted by Dr. Rizwan Siddiqui (PW07) and, as per PM report (Ex.P/03) it has been opined that the

¶28

Page 4 of 16 IN

¶29

Criminal Appeal No.969 of 2017

¶30

cause of death of the deceased is cardio-respiratory failure as a result of burn injuries and its complications. The accusedappellant was arrested vide Ex.P/18. From the place of incident, burnt clothes of the deceased (i.e. her sari, petticoat) alongwith one matchbox containing 11 matchsticks were seized vide Ex.P/17 at the instance of the appellant. The aforesaid seized articles were sent for chemical examination and, as per FSL report (Ex.P/22), it has been opined that particles of kerosene oil were found on the burnt clothes of the deceased (i.e. her sari and petticoat) as also on the matchbox. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet against the accused/appellant in the competent Court of criminal jurisdiction and, ultimately, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellant/accused abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated.

¶31

(5) The prosecution in order to prove its case examined as many as 13 witnesses and exhibited 24 documents apart from final report, whereas the appellant-accused in support of his defence, though examined 03 witnesses, but not exhibited any document.

¶32

(6) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant herein only for offences under Sections 498-A & 302

¶33

Page 5 of 16 IN Criminal Appeal No.969 of 2017

¶34

of IPC and sentenced him as mentioned herein-above, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence.

¶35

(7) Mrs. Usha Chandrakar, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offences under Sections 498-A & 302 of IPC, as the prosecution has failed to prove the said offence beyond reasonable doubt. She further submits that there is no evidence available on record to connect the appellant herein with the offences in question, except the dying declaration (Ex.P/06). However, a bare perusal of the said dying declaration (Ex.P/06) would show that neither the treating doctor nor any medical officer has certified the deceased to be in fit state of mind while recording the same and, even the Naib Tehsildar, namely, Narendra Kumar Banjara (PW-03), who has recorded the said dying declaration has also not recorded his satisfaction with regard to fitness of the deceased in it nor he has uttered at word with regard to the same in his statement before the Court. Therefore, the dying declaration (Ex.P/06) cannot be said to be voluntary and trustworthy and the learned trial Court has committed grave legal error in relying upon the same to convict the appellant herein for the offences in question. Hence, the present appeal deserves to be allowed and the appellant is liable

¶36

Page 6 of 16 IN Criminal Appeal No.969 of 2017

¶37

to be acquitted of the said charge on the basis of benefit of doubt.

¶38

(8) Per-contra , learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. He further submits that in view of dying declaration (Ex.P/06), wherein the deceased has clearly stated the name of the appellant herein to be the author of the crime coupled with other evidence available on record, the conviction and sentence passed by the learned trial Court against the appellant is well merited and, therefore, present appeal deserves to be dismissed.

¶39

(9) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

¶40

(10) Now the questions for consideration would be whether the death of the deceased was homicidal in nature and whether the appellant is the author of the crime, which we will consider together considering the nature of evidence brought on record.

¶41

(11) In the instant matter, the case of the prosecution is solely based on dying declaration (Ex.P/06), therefore, it would be appropriate to notice the principles governing the dying declaration and examination of the doctor while recording the dying declaration. At this stage, it is relevant to notice Section

¶42

Page 7 of 16 IN Criminal Appeal No.969 of 2017

¶43

32(1) of the Indian Evidence Act, 1872, which reads thus:

¶44

“ 32.Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant .—Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:—

¶45

(1) when it relates to cause of death .—When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.

¶46

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

¶47

xxx xxx xxx”

¶48

(12) The general ground of admissibility of the evidence mentioned in Section 32(1) is that in the matter in question, no better evidence is to be had. The provisions in Section 32(1) constitute further exceptions to the rule which exclude hearsay. As a general rule, oral evidence must be direct (Section 60). The eight clauses of Section 32 may be regarded as exceptions to it, which are mainly based on two conditions: a necessity for the evidence and a circumstantial guarantee of trustworthiness. Hearsay is excluded because it is considered not sufficiently trustworthy. It is rejected because it lacks the sanction of the tests

¶49

Page 8 of 16 IN Criminal Appeal No.969 of 2017

¶50

applied to admissible evidence, namely, the oath and crossexamination. But where there are special circumstances which gives a guarantee of trustworthiness to the testimony, it is admitted even though it comes from a second-hand source. The Supreme Court emphasized on the principle enumerated in the famous legal maxim of the Law of Evidence, i.e., nemo moriturus praesumitur mentire which means a man will not meet his Maker with a lie in his mouth. Our Indian Law also recognizes this fact that “a dying man seldom lies” or in other words “truth sits upon the lips of a dying man”. The relevance of this very fact, is an exception to the rule of hearsay evidence.

¶51

(13) Section 32(1) of the Evidence Act is famously referred to as the “dying declaration” section, although the said phrase itself does not find mention under the Evidence Act. Their Lordships of the Supreme Court have considered the scope and ambit of Section 32 of the Evidence Act, particularly, Section 32(1) on various occasions including in the matter of Sharad Birdhichand

¶52

Sarda v. State of Maharashtra 1 in which their Lordships have summarised the principles enumerated in Section 32(1) of the Evidence Act, including relating to “circumstances of the transaction”:

¶53

“21. Thus, from a review of the authorities mentioned above and the clear language of Section 32(1) of the Evidence Act, the following

¶54

1 (1984) 4 SCC 116

¶55

Page 9 of 16 IN

¶56

Criminal Appeal No.969 of 2017

¶57

propositions emerge:-

¶58

(1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice.

¶59

(2) The test of proximity cannot be too literally construed and practically reduced to a cut-anddried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under Section 32.

¶60

(3) The second part of clause (1) of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being crossexamined by the accused, would be valueless

¶61

Page 10 of 16 IN Criminal Appeal No.969 of 2017

¶62

because the place of cross-examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring.

¶63

(4) It may be important to note that Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide.

¶64

(5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant.”

¶65

(14) Section 32(1) of the Indian Evidence Act, 1872 makes it clear that when a statement, written or verbal, is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question, such statement is relevant. The Supreme Court in Sharad Birdhichand Sarda (supra) clearly held that Section 32 is an exception to the rule of hearsay and makes admissible, the statement of a person who dies, whether the death is homicide or a suicide, provided the statement relates to the cause of death or deals with circumstances leading to the death. The decision of the Supreme Court in Sharad Birdhichand Sarda (supra) has further been

¶66

Page 11 of 16 IN Criminal Appeal No.969 of 2017

¶67

followed by the Supreme Court in the matter of Kans Raj v. State of Punjab 2 reviewing the earlier authorities.

¶68

(15) Thereafter, in the matter of Devinder alias Kala Ram and others v. State of Haryana 3, wherein the deceased, who sustained burn injuries while cooking meals on stove, had made a statement to the doctor, their Lordships of the Supreme Court held that statement of the deceased recorded by the doctor is relevant under Section 32 of the Evidence Act and observed as under: -

¶69

“14. In the facts of the present case, we find that PW 7, the Medical Officer of the Civil Hospital, examined the case of the deceased on 6-8-1992 at 6.30 a.m. and he has clearly stated in his evidence that on examination she was conscious and that there were superficial to deep burns all over the body except some areas on feet, face and perineum and there was smell of kerosene on her body. He also stated in his evidence that the deceased was brought to the hospital by her husband Kala Ram (Appellant 1). He has proved the bed-head ticket pertaining to the deceased in the hospital (Ext. DD) as well as his endorsement at Point ‘A’ on Ext. DD, from which it is clear that he was told by the patient herself that she sustained burns while cooking meals on a stove. This statement of the deceased recorded by PW 7 is relevant under Section 32 of the Evidence Act, 1872 which provides that statements, written or verbal, of relevant facts made by a person who is dead, are themselves relevant facts when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction

¶70

2 AIR 2000 SC 2324

¶71

3 (2012) 10 SCC 763

¶72

Page 12 of 16 IN Criminal Appeal No.969 of 2017

¶73

which resulted in his death, in cases in which the cause of that person’s death comes into question.”

¶74

(16) In the matter of Purshottam Chopra and another v. State

¶75

(Government of NCT of Delhi) 4, principles relating to recording of dying declaration and its admissibility and reliability were

¶76

summed up in paragraph 21 as under: -

¶77

“21. For what has been noticed hereinabove, some of the principles relating to recording of dying declaration and its admissibility and reliability could be usefully summed up as under:-

¶78

21.1. A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the court.

¶79

21.2. The court should be satisfied that the declarant was in a fit state of mind at the time of making the statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination.

¶80

21.3. Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of mind of the declarant or of like nature, it should not be acted upon without corroborative evidence.

¶81

21.4. When the eyewitnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail.

¶82

21.5. The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be

¶83

4 (2020) 11 SCC 489

¶84

Page 13 of 16 IN Criminal Appeal No.969 of 2017

¶85

satisfied that the maker is in a fit state of mind and is capable of making the statement.

¶86

21.6. Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/ or attestation be obtained from other persons present at the time of recording the dying declaration.

¶87

21.7. As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement.

¶88

21.8. If after careful scrutiny, the court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration.”

¶89

(17) Recently, in the matter of Irfan @ Naka v. State of Uttar

¶90

Pradesh5 the Supreme Court has held that the dying declaration is a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind and observed in Para-63 as under:

¶91

“ 63. It is the duty of the prosecution to establish the charge against the accused beyond the reasonable doubt. The benefit of doubt must always go in favour of the accused. It is true that dying declaration is a substantive piece of evidence to be relied on provided it is proved that

¶92

5 2023 SCC Online SC 1060

¶93

Page 14 of 16 IN

¶94

Criminal Appeal No.969 of 2017

¶95

the same was voluntary and truthful and the victim was in a fit state of mind. It is just not enough for the court to say that the dying declaration is reliable as the accused is named in the dying declaration as the assailant.”

¶96

(18) Reverting to the facts of the present case in light of the aforesaid principles of law laid down by their Lordships of the Supreme Court in the above-mentioned judgments, it is quite vivid that though during the course of treatment of the deceased, on 17.04.2016, her dying declaration was recorded by the Naib Tehsildar, namely, Narendra Kumar Banjara (PW-03) vide Ex.P/06, wherein she implicated her husband (appellant herein) to be the author of the crime in question. However, a bare perusal of the said dying declaration would show that though the same has been recorded in the Burnt Unit of CIMS, Bilaspur, but neither the treating doctor nor any medical officer has certified the deceased to be in fit state of mind to give statement while recording the same and, even, the Naib Tehsildar namely, Narendra Kumar Banjara (PW-03) has also not recorded his satisfaction with regard to fitness of the deceased in the dying declaration (Ex.P/06) nor has he uttered a word in his statement before the Court that the deceased was conscious oriented at the time of recording of dying declaration (Ex.P/06). Indeed, Narendra Kumar Banjara (PW-03) in his statement before the Court has stated that fitness certificate from the doctor was taken, but same has not been brought on record by the prosecution and reason for

¶97

Page 15 of 16 IN Criminal Appeal No.969 of 2017

¶98

the same is not known to him. Even otherwise, the Investigating Officer, namely, Maniraj Tiwari (PW-11) has also admitted that the fitness certificate of the deceased has not been brought on record. As such, there is no evidence available on record to show that the deceased was in fit state of mind at the time of recording of dying declaration (Ex.P/06), which is very much necessary in light of the decision of the Supreme Court in the matter of Irfan @ Naka (supra) more particularly when as per Medical Case Sheet (Ex.P/09) and MLC report (Ex.P/10), duly proved by Dr. Dharmender Kumar (PW-06), the deceased suffered burn injuries to the extent of 80-85% and, in absence of which, the dying declaration (Ex.P/06) cannot be treated to be true and voluntary and further cannot be relied upon to convict the appellant herein.

¶99

(19) Furthermore, in shape of corroboration, the learned trial Court has relied upon the factum of oral dying declaration given by the deceased to her mother, namely, Shanti Yadav (PW-04). However, the date and time of giving such oral dying declaration has not been mentioned or culled out by the prosecution at any point of time, in absence of which, and further considering the relations between the deceased and her mother, the factum of oral dying declaration given by the deceased to her mother, namely, Shanti Yadav (PW-04) pales into insignificance and cannot be relied upon that too in absence of any corroboration and lack of trustworthiness and voluntariness of the main dying declaration

¶100

Page 16 of 16 IN Criminal Appeal No.969 of 2017

¶101

(Ex.P/06) in absence of fitness certificate from the doctor. Accordingly, the learned trial Court has committed grave legal error in convicting the appellant herein for the offences under Sections 498-A & 302 of IPC and, for the reasons stated hereinabove, we are unable to uphold the conviction and sentence of the appellant, as awarded to him by the learned trial Court, and he is liable to be acquitted of the said charge on the basis of benefit of doubt.

¶102

(20) In view of the foregoing discussion, the conviction and sentences of the appellant for offence punishable under Sections 498-A & 302 of IPC alongwith fine and default stipulation, as imposed upon him by the learned trial Court, are hereby set aside. He is acquitted of the said charge on the basis of benefit of doubt. He is reported to be in jail from 18.04.2016, therefore, we direct that he be released from jail forthwith, if not required in any other matter/case.

¶103

(21) This criminal appeal is allowed .

¶104

(22) Let a certified copy of this order alongwith original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action, if any.

¶105

Sd/Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

¶106

s@if

Satish Yadav v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Satish Yadav v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ram Lal Lakara Vs State Of Chhattisgarh

Balleshwar Nageshia Vs State Of Chhattisgarh

Rajkumar Mishra Vs State Of Chhattisgarh

Rakesh Gond Vs State Of Chhattisgarh

Laxman Singh Korva Vs State Of Chhattisgarh

Ambikeshwar Singh Vs State Of Chhattisgarh